City of Atchison v. Twine

9 Kan. 350 | Kan. | 1872

The opinion of the court was delivered by

Kingman, C. J.:

On the night of the 4th of January 1870 an armed mob took from the jail of Atchison county, in the city of Atchison, one George Johnson, and with other brutal treatment finally hung- him 'until he was dead. His-widow, Eliza Ann Johnson, brought an action against the city of Atchison to recover damages for the killing of her’ husband. After the issues were 'made up, the cause was-removed to Doniphan county for trial, where, on motion of plaintiff, William M. Twine, as administrator of the estate of George Johnson, deceased, was substituted as plaintiff instead of Eliza Ann Johnson; and his letters of administration were filed. This order appears on the journal, but no^ change was made in the petition.

The liability of the city for acts of this character is created by § 1 of ch. 32, Gen. Stat., p. 390, and the method of procedure is pointed out by § 422 of the civil code, p. 709-.. The first section referred to is no novelty in our system of jurisprudence. It was one of the laws of Canute, the Dane,, which was afterwards recognized by our Saxon ancestors, from whom we inherited the common law, that when any person was killed, and the slayer escaped, the ville should pay forty marks for his death; and if the sum could not be raised in ’the ville, then the hundred should pay it. The public reason for the law was, that every one should have an interest in the prevention and prosecution of such offenses. 1 Reeves’ Hist, of English Law, 17. A sketch of the modifications of this law from time to time will be seen by reading the case of Darlington v. The Mayor of New York, 31 N. Y., 185. The remedy, when death ensues from the wrong done, is by an action in the name of the personal representative of the deceased, and the amount recovered will be for the benefit of the widow and children, if any, or next of kin. This action was therefore improperly brought by the widow; and the plaintiff not having the legal right to bring the action, and that fact appearing upon the face of the petition, it was a suitable case for the interposition of a demurrer: Second -clause of § 89 of the code. No objection having been taken by demurrer or answer, the defect was waived: §91. But the court very properly permitted an amendment making the ¡administrator the plaintiff.

A much graver question arises as to whether the administrator should not have amended the petition, so as to show his connection with the suit in the pleadings. The plaintiff in error claims that this should have been done, as the question, as to whether Mr. Twine was administrator, was a fact on which the defendant could have taken issue, and had a right to have the fact appear in the plaintiff's pleadings, and could not take issue without the appearance of such fact in the petition. .The power of the court to allow the amendment is undoubted. Code, §139; Stevens v. Thompson, 5 Kas., 308; Hubler v. Pullen, 9 Ind., 273. But the difficulty does not grow out of the want of power in the court to allow the amendment, or because the court did not make the order .as requested. Nor should wo hesitate, if it were the mere substitution of one name for another. But there is the fact, that the change of parties, by substituting one who could only succeed by reason of his being an administrator, a fact which the defendant had a right to controvert, is not alleged in the petition; and this must we think be held a fatal error. See "Voorhies’ Code, 188; Breech v. King, 17 Wend., 197; White v. Joy, 13 N. Y., 83. It is said that as the letters of administration of Twine were filed they became, and were ■ considered, a part of the petition. But they are not made by reference a part of the petition. Profert of them was not ■necessary. They were but evidence to be used upon proper allegations, and on a sufficient issue.

We are not able to perceive any error in the ruling of the -.court in giving and refusing instructions. As we understand the statute, the fact that injury to property, or to life and limb, is inflicted by a mob, in a city, makes the city respon.sible therefor. It is in itself evidence of a wrongful act, or • omission, on the part of the city, for which they are respon- . sible, and this is what the court said in substance in the second and third instructions given at the request of the plaintiff. The third, ninth and tenth instructions asked by the defendant, and refused, are not law, as it was not essential to recovery that the deceased should have left a wife or child. If he left neither, the recovery could have been had for the benefit of the next of kin.

There was no error in taxing costs. As has been already observed, the defect of proper party plaintiff was waived by the answer. Judgment reversed, and new trial awarded. ^*

All the Justices concurring.